Thursday, July 31, 2014

The rule of law is popular in theory, but a hard sell in practice. It tends to get in the way of what "we" want to do and requires that all sorts of procedures be followed before people can be legally bound or the public's money can be spent. It can be hard, under those circumstances, to "get things done."

Thus we have President Obama's impatience with Congress. It would be easier for him to get what he wants if he could just do it himself. I've often felt the same way.

But the thing is that the rule of law - the insistence upon following the law as it has been written and respecting the proper procedures for changing it - is what separates citizens from subjects. You may like what President Obama does outside the law withe respect to, say, health care or immigration. But just remember that the power you cede to him may one day be exercised by a President Paul Ryan or Marco Rubio. Maybe even Rick Perry or Scott Walker. There are no permanent victories in politics.

So what of last week's decisions about the availability of subsidies in states that have not established insurance exchanges under the Affordable Care Act. There are three things to keep in mind.

First, the language in the ACA that restrict payments of subsidies to policies purchased on "exchanges established by a state" is not readily dismissed as a typo or grammar error. No one forgot to change the number of a section or make uniform a change in terminology. If it was a mistake, it was an egregious one - the kind that no competent lawyer who was paying attention ought to make.

It's simple English. If I allow for exchanges to be established 1) by a state or 2) by the federal government and then provide for subsidies only for exchanges established by a state, then the subsidies don't apply to exchanges established by someone else.

The Milwaukee Journal Sentinel's editorial board suggests that "established by a state" can mean "established for a state." Not in English.

Second, the editorial board regards the "intent"of Congress as obvious. "Of course," it opines, Congress did not "really" mean to exempt the residents of 36 states from "the benefit" of tax credits (credits, incidentally, that can impose penalties on state employers and which cost real money) just because those states did not establish an exchange.

One might answer that they must have been what Congress "really" intended this because it is what Congress "really" did. But there is another problem with the board's reading of the legislative history of the relevant legal provisions as self -evidently clear.

Neither of last week's decision agreed with the board on this.

That's right. Neither the DC Circuit or Fourth Circuit majorities thought that the legislative history established that Congress intended that tax credits be available for federal exchanges. Even the Fourth Circuit found that the evidence of Congressional intent was inconclusive.

It is easy to imagine that Congress wanted something else. Indeed, one of the current enthusiasms among lawyers and scholars on the legal left is "cooperative federalism." It is, in fact, quite common that federal largesse is made contingent on states setting up a program or adopting a particular policy. While there is certainly an argument that this should not be done with a law like the ACA (assuming one wants like a law like the ACA), there are also arguments that it should.

In fact, there seems to have been two versions of the ACA originally drafted in the Senate. One provided for subsidies in federal exchanges and the other did not. The two were merged and the language of the latter survived. Normal principles of statutory construction say that a legislative body could not have intended to adopt language that it rejected.

Third, the board's conclusion that the "purpose" of the law should trump what it says ought to scare you. We are governed by the rule of law and not persons. We are, as I wrote earlier, citizens and not subjects. Perhaps Congress never believed that states would not set up exchanges. Maybe, as some evidence suggests, they understood that some may not do so and wanted to use the tax credits as an incentive.

Either view is consistent with the "purpose" of the law. Adopting some broad and unqualified purpose - to "increase" coverage" - is to beg the question. In enacting the ACA, Congress did not authorize the President to change the law as long as it increased coverage. It passed a law that it thought would increase coverage in a particular way. Just what that way entails is best discerned by reading the law that they wrote.

Friday, July 18, 2014

Over at Right Wisconsin, I have a column on the notion that Barack Obama is somehow subjected to more abuse or disrespect than other Presidents. Until this week, I would have thought that the idea that opposition to President Obama can be dismissed as based on his race was either intellectually lazy or simple partisan mischief.

If in a particularly ornery mood, I might have pointed out that this view is, in its own way, a manifestation of political hatred and ignorance. It should not he hard to understand why conservatives and libertarians would be apoplectic over a President who, whether you like him or not, is a pretty strong statist and fairly far to the left by recent standards. You can disagree with them, but to believe that they could have no reason for their opposition other than race is to refuse to even listen to those you disagree with. it It is to accuse them of subscribing to a noxious set of views without the slightest evidence.

In short, flinging allegations of racism at the President's critics is every bit as divisive and demagogic as the worst you may imagine about the late 60s GOP's supposed "southern strategy."

But it may even be worse than that.

If all you do is follow the mainstream media (including this newspaper). you probably have never read this story. (Indeed, to get the story locally, you would have had to listen to the "hateful" people on talk radio who "destroy everything that is good in our lives.")

At a holiday parade in Norfolk, Nebraska, someone entered a float that depicted the Obama Presidential Library as an outhouse. There was some kind of mannequin - described as "zombie-like" - that the proprietor of the exhibit said was supposed to be himself and not the President. He says he is a veteran and was depicting himself as dismayed by the poor care at VA hospitals.

Others disagree. They say that he was portraying the President outside of an outhouse. I don't care. Let's assume it was the President.

The float was, in my view, simple-minded and unimaginative. Potty humor got old for me sometime around 1962. I also tend to agree with the idea that Fourth of July parades aren't the best venue for political commentary.

The float certainly was not original. President George W. Bush's future Presidential library was also portrayed by as an out house - but not by an obscure float in a relatively small town. To the contrary, the Bush Presidential Outhouse was a product of Mike Luckovich, a nationally syndicated political cartoonist who has received two Pulitzer prizes for his brand of progressive potty humor.

And that was his constitutionally protected right. I would have thought that we were permitted to mock our Presidents. We've sure done a lot of it.

But, no. The Department of Justice has actually sent representatives to Nebraska to address this potential violation of our civil rights laws. It's Community Relations Services team has been dispatched to "resolve" this objectionable criticism of the boss.

I could explain all of the reasons why this is wrong, but I shouldn't have to.

If you aren't bothered by the idea that the federal government would send agents to investigate and "mediate" criticisms of the head of the federal government, you are not a civil libertarian. Don't tell me that you give to the ACLU. Don't explain how groovy you are on gay marriage, abortion, marijuana or the NSA. You have no regard for the First Amendment. You are committed to freedom for yourself and those like you, but not for others.

Wednesday, July 16, 2014

In a recent version of his newsletter, he either describes - or endorses a description offered by some one else (standard punctuation doesn't seem to be among his interests) - of conservatives. He says - directly or by agreement - that conservatives - or at least the ones on talk radio - offer "poison to everything that's good in our lives as a roadblock to the path of Kindness that leads to cooking."

Now, I hadn't thought that cooking was a political act. I am aware that fevered imaginations can make it so just as some on both sides of our political divide convinced themselves that watching (or not watching) the World Cup was an ideological act. Let's put that silliness aside.

Would I ever say that the American left is a "poison to everything that's good in our lives ?"

Now, if anyone would be inclined to do so, it would be someone in a position like mine. I believe that liberty is preferable to command and the direction of life through politics - as opposed to markets or voluntary communities - should be avoided as much as can it be.

Although I enjoy what I do, I am sufficiently persuaded that this perspective is most conducive to a better life for everyone, that I spend about 60 hours per week advancing it. (I don't do it for money. Although I am very well paid, I made a lot more - over two to three times as much - as a business lawyer.)

But I understand that intelligent and well-intentioned people can disagree with me. They offer a perspective that ought to be respected - even as it may be robustly criticized. I'm too old to think that I have a monopoly on truth or morality.

But I guess Mr. Penzey is not. While I am sure that he doesn't see himself in this way, his newsletters suggest that he is simplistic and close-minded; one who fears and refuses to understand "the other."

Of course, there's another possibility - one that I suspect is just as likely as not. It could well be that Penzy's all-in lefty posturing is a marketing ploy. He sells what I suspect are commodity products - one that are really not much different from those of his competitors. To differentiate his spices, he wants to convey a message to the earth mothers and aging hippies that, by buying Penzey's, they are still part of the revolution.

Tuesday, July 15, 2014

Mary Burke's says that she'll ban out-of-state campaign contributions. Given that she is going after out-of-state cash, it was cynically offered as a way to step on the announcement that Governor Walker is far ahead in fundraising.

In any event, such a prohibition would almost certainly be unconstitutional.

It could not, under current constitutional doctrine, be justified by a desire to prevent Wisconsin candidates from associating with out-state donors or to keep those donors from being heard on Wisconsin elections. It would be permitted only if courts could be persuaded that out-of-state money - by virtue of its origin and not its amount (out-of-state contributors are subject to the same limits as everyone else) - presents a larger risk of quid pro quo corruption.

That strikes me as a hopeless task and it has failed whenever it has been tried. The question that critics of out-of-state money ask is this: Why would someone in Texas care about an election in Wisconsin?

The question answers itself. In federal elections, it's easy. A Member of Congress from Wisconsin gets the same vote on matters that affect Texas as one of its own representatives.

In state elections, it's just as easy. For someone to be able to get something from a Wisconsin elected official, he or she must have some interest in the state of Wisconsin. If that's so, then the risk of corruption is no greater than that presented by residents of the state - who also have interests in the state of Wisconsin. In other words, the threat of corruption is no greater with, say, the CEO of Georgia Pacific or a PAC associated with the national office of AFSME than it is with a local union or the CEO of Epic Systems.

If one is truly "outside" the state - i.e., someone with no tangible interest in state government - then there can be absolutely no risk of quid pro quo corruption. If George Soros or Sheldon Adelson have no business here, then they cannot benefit from state government. Their interest must be purely ideological, i.e., it must reflect a view about what is best for the state and, by extension, the country. If states are the laboratories of democracy and if a significant piece of national policy consists of the external effects of the policies of the individual states, it's not hard to see why a conservative or liberal donor in another state might care about what happens here.

Indeed, I suspect that much of the heavy spending from out-of-state donors on both sides is ideological.

When people criticize out-of-state contributions, they are really claiming that "outsiders" should have nothing to say about our elections. That strikes me as understandable, if a bit insular. But it's not enough, under our Constitution as interpreted by the Supreme Court to restrict the rights of expression and association involved with making and receiving campaign contributions.

Monday, July 14, 2014

Yesterday's Milwaukee Journal Sentinel published a column by Leonard Pitts criticizing the Hobby Lobby decision. It stands in substantial need of correction.

Pitts writes:

I once saw a protest sign to the effect that if men gave birth, contraception would be bacon-flavored and dispensed from vending machines. Can anyone argue the truth in that?

I can. Pitts needs an editor, because contraception is dispensed from vending machines. At least it is in men's rooms. I can't speak for the women's. Birth control pills, as far as I know, are not because they must be filled by prescription. But the FDA apparently allows Plan B by vending machine. My guess is that, if a strong medical case could be made for over the counter availability of traditional birth control pills, there would be wide spread support.

Pitts writes:

Would we even be having this debate if some company has a religious objection to Viagra - or vasectomies?

We probably would not be - but not for the reason he thinks. We wouldn't be having it because Obamacare does not compel anyone to cover Viagra or vasectomies. Most insurance plans do cover them but, then again, most cover contraception as well - and did so before there was a mandate.

If government did mandate coverage of vasectomies, there may well be some companies - say those run by very traditional Catholics - who might object. The claim of such objectors under RFRA would be subject to the same analytic framework as Hobby Lobby's.

Pitts writes:

If it is too much to ask Wheaton College to fill out a form because an employee will be "triggered' to buy contraception on her own, does the school also have the right to scrutinize and approve other purchases made with the salary she earns from them?

Not a chance. There is a difference between being made to pay for something - or to participate in its purchase - and to seek to control the use someone makes of an employee's money after it has been paid to her and becomes "hers." If Pitts can't see that, be needs to try harder.

Pitts writes:

In its rush to confer personhood on organizations and constrain women's choices, the court steers us toward a day in which corporate rights would trump human rights and you could no longer take for granted that you would be served by a given business without first checking to make sure that you didn't offend the owner's religious sensibilities.

The only rights recognized in Hobby Lobby were human rights - the rights of the humans who built and own the company. I presume that Pitts believes that the humans who own the corporation he works for - the Miami Herald - have a First Amendment right to publish his work.

The question for the court was how to reconcile conflicting claims of right by human beings. The idea that this conflict can be made to go away because some humans are exercising those rights in a corporate form or in the course of a commercial pursuit is preposterous. It's still there and still must be addressed.

In Hobby Lobby, the Religious Freedom Restoration Act provided the framework for resolution of that conflict. As the Court made clear, that does not mean that any claim of religious offense will prevail.

Finally, Pitts is upset because the Hobby Lobby majority suggested that an accommodation for nonprofits that required the insurers of objectors to provide contraceptives for free would be a less restrictive way to provide free contraceptive to employees of for profit companies like Hobby Lobby. But, several days after the Hobby Lobby decision, he thinks the Court "judged" that provision to be an unreasonable burden because it issued a temporary injunction freeing Wheaton College from having to fill out certain paperwork in connection with that accommodation.

Here Pitts gets into the legal weeds and entangles himself. It is not true, as he writes, that the Hobby Lobby court held that this accommodation would be legal as applied to religious nonprofits. It simply said that it would be one less restrictive way to accomplish the government's objective of providing free contraceptives for employees of for profit companies. It did not say that it was the least restrictive way - which is what RFRA requires.

His upset is premature. The court has not made a final decision on the Wheaton College case. It has only freed Wheaton from compliance - until its claims can be adjudicated. The injunction clearly indicates that a majority of the Court believes that Wheaton has a serious case, but that does not mean that Wheaton will win.

Wednesday, July 09, 2014

Once again, I feel compelled to respond to a legal opinion offered by
the Journal Sentinel's editorial board. In this case, the board
believes that the case that I and my colleagues at the Wisconsin
Institute for Law & Liberty on behalf of Sen. Ron Johnson should be
dismissed. Although it will leave the "legal particulars" to the court
(good call), the board thinks that Members of Congress and their staff
"should" receive employer provided health insurance.
So do I.
But
Congress did not.

It decided that Members and their staff should be in
the same position as those most affected by the new Affordable Care Act.
It decided that this would help Members and staff to understand the
impact of the ACA and provide credibility to both Congressional
proponents and opponents of the law. So it repealed federal health care benefits for Members and staff and said they may only be provided with insurance on exchanges. People who purchase in individual exchanges (the only ones that Members and staff qualify for) can't get tax free employer contributions.

When it came time to walk the walk, a minority of Members objected. They asked their colleagues to change the law and give back the benefits they had taken away. Congress refused. Unable to change the law, these Members asked the administration to bail them out and they did - writing a rule that undoes the law that is actually on the books.
Judge Griesbach will
decide if Senator Johnson has standing to challenge the blatantly
illegal rule that rewrites this mandate of equal status. I've been
doing this too long to think I can predict the outcome of a case like
this. But we believe that he does and , not as the board suggests, because
of a generalized desire to see the law enforced.

Rather, the Senator has standing because it harms
his relationship with his constituents and the ability to manage his
personal staff in accordance with the law.
Rightly or wrongly, Congress decided that being in the same boat with those most affected by the ACA was important. Each Member
is now entitled to insist on that status and is injured by the
government's blatantly illegal rewrite of the law to evade it. (A Member can decline benefits for herself, but not for her staff.) In
addition, each Member has an unavoidable legal responsibility to take
certain steps to comply with the illegal "workaound" the law that
Congress passed. This too supports standing.
The editorial board
dismisses this interest in equal status as mere government "hypocrisy"
and suggests that nothing should be done about that. What it
doesn't understand is that a federal court is unlikely to dismiss what a
co-equal branch of government has done as a mere stunt or meaningless
act of political masochism. If Congress has a reason to do what it did,
then Members of Congress - the very people affected by what it did -
have a reason to insist on it.
But whatever comes of the standing argument (something that we knew would be raised), the
outcome of the case should not turn on whether it is "good" for Members
and staff to get federal health benefits. Congress decided that they
should not. If that decision was wrong, Congress itself controls the remedy. It can repeal the mandate of equal status that it adopted.
But
so far it hasn't. In a nation of laws, it is not for the Executive
Branch or the judiciary to do it for them. To say that Senator Johnson,
for insisting on fidelity to the law, is engaged in a "political stunt"
is quite disappointing. I would have not have thought we'd come to the point where convenience trumps the rule of law.

Thursday, July 03, 2014

Here is a statement that is objectively false.In a stunningly misogynistic and regressive decision, five male justices of the Supreme Court of the United States have decided that if you are a woman your boss can force you to adhere to his religious beliefs.- Kristen Hansen, Blue in a Red County (emphasis supplied).Now I have no doubt that Ms. Hansen sincerely believes this, but it isn't true. Your boss can't force you to adhere to his religious beliefs. The statement is not even close. It is not arguably true. Nor is it metaphorically true. It is not true if translated into any other language on the face of earth. It's not true with fingers crossed behind your back. It just isn't true.As a result of Monday's decision in Burwell v. Hobby Lobby, no one will be forbidden to use any form of lawful contraceptive. All the Court said is that the government can't force your boss to pay for them - if he or she has a genuine religious objection to providing them.In fact, the truth is almost the opposite of what Ms. Hansen thinks it is. The rationale behind Hobby Lobby is that the government cannot enable you to force your boss to follow your religion or ethical views regarding aboritfacients (Hobby Lobby covers all other forms of contraceptive, including the pill, the diaphragm, etc.) You cannot make her pay for things that her religion tells her are wrong - unless there is no other way to achieve a compelling governmentment interest. If, as protestors outside of the Court claimed, your birth control is none of your employer's business, don't ask her to pay for it. (And, yes, some of the owners who objected in this case were female.)But wait - if your boss doesn't pay for something, doesn't that mean that you won't be able to get it? You'd think the problem with that claim would be clear upon stating it. But I guess not. To say that a person is "denied" access to something every time someone else is not forced to pay for it does troubling violence to both the English language and to our notions of individual freedom and responsibility. It would be to say that women (and men; these things are normally needed only when one of them is around and, if he is a man, he ought to be concerned too) have been "denied" access to contraceptives until passage of the ACA's mandate. It would be to say that those who work for employers who are not covered by the ACA or whose employers choose not to provide coverage are "denied" access. Neither is true.To be sure, most of us would prefer that someone else pay for our stuff. And there are certainly people for whom even the relatively low cost of contraceptives can present difficulties. Given the relatively low cost of these drugs, it's not clear that many of them work for Hobby Lobby (it pays sales clerks twice the minimum wage) or, for that matter, any other employer who provides the relatively expensive insurance mandated by the ACA. But let's put that aside. The solution is not to run roughshod over those closely held employers with a religious objection. If the government wants people to have these things for free, it can be done - and more honestly done - without forcing religious objectors to pay for it. The irony here is that, in other contexts, we want "for profit" businesses to conduct themselves in accordance with moral precepts. We want them to be "good corporate citizens" - but apparently only to the extent that those moral precepts are approved by a political majority. And there's the problem. The guarantee of religious liberty is not limited to beliefs that "we" approve of. There would, in fact, be no need to protect religious beliefs shared or tolerated by a majority. It is unlikely that any law would ever be passed restricting them.Now, if you don't like, this, you ought to call for repeal of the Religious Freedom Restoration Act. You can argue that someone's desire or need for free contraceptives (the mandate makes no distinction between the two) trumps someone's else's sincere moral convictions about the sanctity of human life and what it means to be complicit in what he or she believes to be an immoral act. But don't pretend that you aren't the one imposing your moral presuppositions on someone else. The fact that you think you are right makes you no less an authoritarian.The decision is not misogynistic - "stunning" or otherwise. ("Regressive" is just an epithet meaning "I don't like it.") I understand that control over reproduction is critical for women. (It's actually pretty critical for men too; but there certainly is a difference.) But that doesn't permit us to dismiss the associated moral and religious questions. It doesn't mean that all methods of control are acceptable or need to be financially supported by everyone. Hobby Lobby objected to four of twenty covered drugs that they believe to be abortifacients, i.e., drugs that its owners believe ends a life that has already begun. I had not thought that we had gotten to the point where opposition to abortion - or an unwillingness to pay for it - can be dismissed as misogynistic. That will certainly come as a surprise to the women who dominate the pro-life movement.

About Me

I am President and General Counsel of the Wisconsin Institute for Law & Liberty and an adjunct professor of law at Marquette University Law School. The views expressed here are my own and not those of WILL or Marquette. They are offered in my personal capacity.